People v. Chan CA3

Filed 6/9/16 P. v. Chan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C079668

Plaintiff and Respondent, (Super. Ct. No. SF090168D)

v.

RATHANA CHAN,

Defendant and Appellant.

Appointed counsel for defendant Rathana Chan has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We order correction of the abstract of judgment to conform to the oral pronouncement of sentence and affirm the judgment. BACKGROUND On September 12, 2003, defendant and another person fired shots from defendant’s car into another vehicle, killing one person and wounding two others. Several of defendant’s passengers told police that, when defendant pulled alongside the victims’ vehicle, he said he believed the victims were gang members who “had shot at

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him before in the past” and were “the enemy.” Defendant’s passengers also told police that people in defendant’s car were also members of a gang. On January 17, 2006, defendant was charged by third amended complaint with one count of murder (Pen. Code, § 187--count 1),1 two counts of attempted premeditated murder (§§ 664/187, subd. (a)--counts 2 and 3), discharge of a firearm from a vehicle (§ 12034, subd. (d)--count 4), shooting at an occupied motor vehicle (§ 246--count 5), street terrorism (§ 186.22, subd. (a)--count 6), and possession of a firearm by a felon having previously been convicted of a violent offense (§ 12021.1, subd. (a)--count 7). The complaint alleged that, in committing count 1, defendant discharged a firearm from a vehicle with the intent to kill (§ 190.2, subd. (a)(21)) and was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). The complaint further alleged that, in committing counts 1 through 5, a principal personally and intentionally discharged a handgun causing death to the victim (§ 12022.53, subds. (d) & (e)(1)) and that defendant committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). A warrant issued for defendant’s arrest on January 17, 2006. On October 26, 2012, defendant filed a motion to dismiss the outstanding warrant, claiming unreasonable delay in his extradition in that he had been serving time in Pennsylvania and was easily located. The trial court appointed counsel for defendant, but the motion to dismiss was dropped from calendar after two appearances where defendant’s whereabouts were unknown. On July 8, 2013, defendant appeared in court with counsel. Defendant entered not guilty pleas and the matter was set for a preliminary hearing. Defendant made no mention of his motion to dismiss. The preliminary hearing was conducted and on